The Trump administration, with the aid of Senate Majority Leader Mitch McConnell, has confirmed a historic number of judicial nominations, lifetime appointments that will help shape the federal judiciary for decades. American Oversight is suing the Justice Department to shed light on the influence that outside groups and individuals, including the Federalist Society’s Leonard Leo and the Heritage Foundation’s John Malcolm, may have exercised over those nominations.
Leo, the Federalist Society’s executive vice president with close ties to the Judicial Crisis Network, played a central role in advancing the nominations of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, both of whom were selected from a short list of potential nominees crafted by Leo and the Federalist Society. A network of nonprofit groups reportedly tied to Leo helped finance the multimillion-dollar advocacy effort for both nominees’ confirmation battles. John Malcolm, the director of the Meese Center at the Heritage Foundation, also played a crucial role in shaping the list of possible replacements for Justice Antonin Scalia.
The reported influence of partisan groups on judicial nominations is not limited to the Supreme Court. Leo also serves as Trump’s “informal adviser” on nominations to federal district and appeals courts. Even before Trump took office, Leo and members of the transition team began to vet judicial candidates. Many of the lifetime appointees with whom Trump has stocked the federal courts are members of the Federalist Society.
“The Constitution vests the authority to appoint judges in the president with the advice and consent of the Senate, not Leonard Leo or other ideological outsiders,” said Austin Evers, executive director of American Oversight. “Seeking outside input would be one thing, but the administration’s apparent total deference appears to be unprecedented and anti-constitutional. The public should get to see the influence that is being brought to bear on the process.”
American Oversight’s lawsuit comes after the Justice Department failed to respond to three Freedom of Information Act requests for records, including communications between agency officials and outside groups or individuals — such as Leo, Malcolm, McConnell, and any of the current Supreme Court justices, as well as the Federalist Society, the Heritage Foundation, and the National Rifle Association.